Franks v. State
| Citation | 90 S.W.3d 771 |
| Decision Date | 18 July 2002 |
| Docket Number | No. 2-00-431-CR.,2-00-431-CR. |
| Parties | Richard Lee FRANKS, Appellant, v. The STATE of Texas, State. |
| Court | Court of Appeals of Texas |
L. Patrick Davis, Fort Worth, for Appellant.
Tim Curry, Dist. Atty., Charles M. Mallin, Chief Appellate Assistant District Attorney, Edward L. Wilkinson, Gregory Miller, Lisa Callaghan, Asst. Dist. Attorneys, Fort Worth, for Appellee.
Panel B: DAY, LIVI NGSTON, and GARDNER, JJ.
A jury convicted Appellant Richard Lee Franks of aggravated kidnapping, and the trial court assessed punishment at life imprisonment. In nine points, Appellant complains about: (1) the alleged denial of his right to a fair and impartial trial; (2) the trial court's denial of his motion to suppress the fruits of his detention; (3) the trial court's denial of his motion for an instructed verdict; (4) the trial court's denial of several motions for mistrial; (5) the trial court's refusal to include an article 38.23 instruction in the jury charge; (6) the trial court's denial of his motion for continuance; and (7) the effectiveness of his trial counsel. We affirm.
On the evening of March 26, 1999, sixyear-old Opal Jennings was playing with her two-year-old cousin Austin and fouryear-old friend Spencer Williams on a lot adjacent to Opal's grandparents' house. While the three were playing, a car pulled up to the curb, and the driver got out, said hello to the kids, picked up Opal, hit her in the chest, threw her into his car, and drove off. Spencer described the abductor as a dark or light-complected, slender man who had long hair pulled back into a ponytail and marks on his face. Spencer further stated that the abductor was wearing a short-sleeve T-shirt, dark pants, dark sneakers, and a red ball cap and was driving a "purpledy-black" car.
A person who regularly met with Appellant believed that the description given by Spencer matched Appellant and Appellant's new car. Therefore, he contacted the appropriate authorities. When the authorities went to question Appellant, they noticed a black Cougar in his driveway and later learned that one of Appellant's brothers had previously lived on the same street as Opal.
Appellant was arrested on an outstanding traffic warrant. While in custody at the special crimes section of the Tarrant County District Attorney's Office, Appellant consented to a search of his vehicle and gave a statement. Based on the statement, Appellant was arrested for the aggravated kidnapping of Opal.
Appellant argues in his first point that he was denied due process because the trial judge, the Honorable Robert Gill, was not impartial. Specifically, Appellant contends that Judge Gill was required to sua sponte recuse himself from Appellant's trial when Judge Gill's testimony from a previous motion to recuse concerning disputed facts was introduced as evidence in Appellant's motion to suppress hearing over which Judge Gill was presiding.
Appellant was indicted on March 16, 2000, for the March 1999 aggravated kidnapping of Opal Jennings, and the case was assigned to the 213th District Court, over which Judge Gill presided. On June 14, 2000, Appellant filed a motion to recuse Judge Gill from hearing Appellant's case based on the fact that Judge Gill had signed Appellant's arrest and search warrants and had consequently determined the existence of probable cause, which Appellant contended constituted "comments reasonably calculated to be disseminated to the ... seated venire ... bearing on the Defendant's innocence and admissibility of critical evidentiary matters."
Appellant's recusal motion was set for a hearing on June 19, 2000, in front of the Honorable Jeff Walker. During the hearing, Judge Gill acknowledged that he signed Appellant's arrest and search warrants as well as the State's motion to seal the arrest warrant and affidavit. However, he explained that he did not recall discussing anything outside the four corners of the affidavit serving as the basis for the search warrant. Judge Gill also asserted that while he did not have much contact with Appellant during his arraignment, he noticed that Appellant was quiet. When questioned about the possibility that he could be called as a fact witness in Appellant's case based on his observation of Appellant's demeanor, Judge Gill responded that there were a number of people who could testify to the same things. However, he stated without an explanation that he did not agree that Appellant's counsel could call him as a witness concerning those warrants he signed in relation to Appellant's case. He also testified that he would expect to preside over pretrial motions to suppress the evidence he had previously concluded constituted probable cause to support the issuance of arrest and search warrants, but that it would not cause him any problems. Judge Gill finally testified concerning the effect his signing of the warrants would have on the jury's impartiality. Specifically, Judge Gill asserted that his actions in setting Appellant's bail at $1,000,000, determining there was sufficient probable cause for Appellant's arrest, and determining that there was sufficient probable cause to search Appellant's car did not constitute opinions on the case that could be conveyed to the jury. Following the hearing, Judge Walker concluded that Judge Gill's actions in this case would not raise questions about his impartiality and denied Appellant's motion.
Before Appellant's first trial for this offense, he filed a motion to suppress, which Judge Gill denied. Appellant did not call Judge Gill as a witness in the hearing or introduce his testimony from the recusal hearing into evidence.
Before Appellant's second trial, he filed a motion for Judge Gill to reconsider his ruling on Appellant's previous suppression motion. During the hearing on his motion, Appellant called Judge Gill to testify; however, Judge Gill refused. Therefore, Appellant introduced Judge Gill's testimony from the recusal hearing into evidence. After the introduction of the trial transcript from the recusal hearing, the following exchange occurred:
The Honorable Robert Keith Gill testifying. (Reading:) Question by [Defense Counsel]: Are you familiar that one of the grounds to recuse under Rule 18(b) is personal knowledge of disputed evidentiary facts concerning the proceeding?
Answer: If it's not, it should be.
Your Honor, for all those reasons, we'd ask that you grant this motion to suppress and anything else, Your Honor, counsel wants to offer is fine.
Judge Gill denied Appellant's motion.
Appellant argues that the failure of Judge Gill to recuse himself sua sponte violated his due process and due course of law rights under both the federal and state constitutions. See U.S. CONST. amend. V; TEX. CONST. art. I, § 19. Specifically, Appellant initially contends that his conviction is void pursuant to the trial court's violation of rule 605 of the rules of evidence. See TEX.R. EVID. 605.
Rule 605 states in full that Id. The language of rule 605 is unambiguous in its prohibition against a judge who is presiding over a proceeding from stepping down from the bench and becoming a witness in the very same proceeding over which he is currently presiding. Hensarling v. State, 829 S.W.2d 168, 170 (Tex.Crim.App.1992). We agree that under the applicable rule, Judge Gill's testimony should not have been admitted into evidence.
However, while we recognize the importance and mandatory nature of this rule, we are also cognizant of Appellant's own role in any error. When requested to testify, Judge Gill refused and explained that he could not testify in the case. Appellant then introduced Judge Gill's testimony from the recusal hearing without any objection by the State, and Judge Gill admitted it into evidence. While it is true that Judge Gill could have refused to admit such evidence, the defendant, as a general rule, cannot invite error and then complain about it on appeal. Hess v. State, 953 S.W.2d 837, 840 (Tex.App.-Fort Worth 1997, pet. ref'd). In other words, a "defendant may not create reversible error by his own manipulation." Beasley v. State, 634 S.W.2d 320, 321 (Tex.Crim.App. [Panel Op.] 1982); see also Kelley v. State, 823 S.W.2d 300, 302 (Tex.Crim.App.1992). This rule applies whether or not the error is perceived to be fundamental. Hess, 953 S.W.2d at 841; see also Cadd v. State, 587 S.W.2d 736, 741 (Tex.Crim.App.1979) (op. on reh'g) (applying the rule of invited error to dispose of an issue on rehearing which, on original submission, the court determined constituted fundamental error).
In Prystash v. State, 3 S.W.3d 522, 529-31 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000), the defendant requested the omission of a jury charge that was statutorily required to be given. The defendant argued on appeal that the trial court had erred in failing to submit the issue to the jury. In overruling the defendant's contention, the court of criminal appeals expressly rejected the defendant's complaint about the trial court's deletion because the charge had been omitted upon the defendant's request. Id. at 532.
In the present case, Appellant requested the admission of the transcript. Appellant can not now complain on appeal that the...
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